Daily Construction: Friday, 8 May 2015 View in browser

A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Construction

Executive Summary (One Minute Read)
Southern Han Breakfast Point Pty Ltd v Lewence Construction Pty Ltd (NSWSC) - security of payments - no reference date in support of payment claim - adjudicator’s determination void
Hammersley v National Transport Insurance (TASFC) - motor vehicle accident insurance policy - insurer could not rely in exclusion clauses - appeal allowed
Summaries With Link (Five Minute Read)
Southern Han Breakfast Point Pty Ltd v Lewence Construction Pty Ltd [2015] NSWSC 502
Supreme Court of New South Wales
Ball J
Security of payments - plaintiff sought declaration that adjudication determination made by adjudicator under s22 Building and Construction Industry Security of Payment Act 1999 in respect of payment claim made by first defendant was void - plaintiff submitted adjudicator made jurisdictional error because he wrongly determined that a reference date within meaning of s8 had arisen in respect of work subject of payment claim - plaintiff also submitted adjudicator denied it natural justice - ss8 & 13 - held: there was no reference date supporting payment claim - no denial of natural justice - plaintiff entitled to declaration sought.
Hammersley v National Transport Insurance [2015] TASFC 5
Full Court of the Supreme Court of Tasmania
Blow CJ; Porter & Pearce JJ
Insurance - motor vehicle accident insurance policy - exclusion clauses - second appellant company operated fleet of trucks - Kellera held policy of insurance issued by respondent insurer - first appellant, in course of employment by Kellara, was driving one of its prime movers - prime mover was towing trailer on which there was an excavator - excavator was positioned in unusual way - top of excavator collided with railway overpass causing damage - State of Tasmania owned overpass - State sued first appellant and Kellara for damages for negligence - appellants instituted third party proceedings claiming indemnity from the insurer - drivers covered by policy - primary judge gave judgment for State against appellants - primary judge dismissed appellants’ claim against insurer - appellants appealed - held: Court satisfied overloading of trailer was neither intended, foreseen, looked for, expected, nor brought about by design - overloading was accidental within meaning of policy - liability under policy not excluded - vehicle not ‘being used in an unsafe or unroadworthy condition’ within meaning of exclusion - Court satisfied there was not any recklessness or reckless failure by first appellant that would entitle insurer to rely upon exclusion - appeal allowed - order dismissing third party proceedings set aside - judgment for appellants against insurer.
By Lola Ridge

The earth is motionless
And poised in space …
A great bird resting in its flight
Between the alleys of the stars.
It is the wind’s hour off ….
The wind has nestled down among the corn ….
The two speak privately together,
Awaiting the whirr of wing